Exhibit 99(e)(8)
SECOND AMENDMENT TO AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED EXECUTIVE EMPLOYMENT
AGREEMENT is entered into as of this 31st day of March, 2000, by and among
American National Can Company, a Delaware corporation, and American National Can
Group, Inc., a Delaware corporation (collectively the "Company"), and Xxxxxxx X.
Xxxxxxx (the "Executive").
RECITALS:
A. The Company and the Executive are parties to an Amended and
Restated Executive Employment Agreement, dated as of May 28, 1999 (the
"Agreement").
B. The parties have agreed to update the Agreement to reflect certain
agreements relating to additional payments to be made to the Executive under the
Management Incentive Plan and the retention program in connection with the
proposed transactions among the Company, Rexam PLC, an English limited company
("Rexam") and Rexam Acquisition Subsidiary Inc. (the "Merger Sub") (the
"Merger"), pursuant to the Agreement and Plan of Merger among Rexam, the Merger
Sub and the Company, dated as of March 31, 2000 (the "Merger Agreement").
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt of which the parties hereby acknowledge, the
parties agree as follows:
1. AMENDMENT TO SECTION 3(B). Section 3(b)(i) is hereby amended by adding
"(A)" after the subsection heading "(i)" and before the words "The
Executive," by changing the reference to "subsection (b)(i)" in the
last sentence of the newly renumbered subsection 3(b)(i)(A) to
"subsection (b)(i)(A)," and by adding the following subsection (B)
after the newly renumbered subsection 3(b)(i)(A) thereof:
(B) Unless the Performance Conditions set forth below (the "Performance
Conditions") are not satisfied during the period commencing on the date
hereof and ending on the Closing Date (as defined in the Merger
Agreement), the Executive shall be entitled to receive, in addition to
the amounts set forth in Section 3(b)(i)(A) hereof, additional MIP
awards in a lump-sum cash payment equal to the sum of (x) the aggregate
amount payable under Section (3)(b)(i)(A) hereof without the discount
referenced in the last sentence of Section 3(b)(i)(A) and (y) the
amount equal to the MIP award payable at maximum level for the year
2000 pro-rated based on a fraction, the numerator of which shall be the
number of days from January 1, 2000 until the Closing Date, and the
denominator of which shall be 365 (the sum of (x) and (y) referred to
herein as the "Additional MIP Awards"). For purposes of this Section
3(b)(i)(B), the Performance Conditions are: (I) regular consultation
between the Executive and the Chief Executive
Officer of the Company (the "CEO") (or his designee) on any matter
which is likely to have a material and negative effect on the results
of operations of the Company and the taking of any action agreed upon
by the Executive and the CEO (or his designee) pursuant to such
consultation with respect to such matter; and (II) the Executive having
provided active, positive support to the process of Rexam acquiring and
integrating the Company into Rexam's operations and administrative
structures as reasonably directed by the CEO (or his designee),
including but not limited to, supporting the acquisition internally and
externally, exercising reasonable efforts under the circumstances to
minimize attrition among key management of the Company, providing
access to information and employees, in accordance with and subject to
the limitations of Section 5.02 of the Merger Agreement, and using
reasonable efforts under the circumstances to preserve relationships
with customers and suppliers, in accordance with and subject to the
limitations of Section 4.01(a) of the Merger Agreement, to the extent
the Executive's duties as of the date hereof include contact with
customers and suppliers. In the event that Rexam reasonably considers
that the condition set forth in (II) above is not being or is unlikely
to be met based upon performance to that time, Rexam will promptly
advise the Executive in writing of such, and shall provide the
Executive with a reasonable opportunity to remedy his performance and
meet such Performance Conditions. Notwithstanding anything contained in
this Agreement to the contrary, the Additional MIP Awards shall be
payable upon the earlier to occur of the thirtieth day following the
Closing Date and the date that the Executive is due to receive his
first payment under Section 3 of this Agreement. For purposes of
Sections 2(j) and 3(h) of this Agreement, and for purposes of all
employee benefits provided by the Company (hereunder or otherwise) that
are affected by the compensation or earnings of the Executive, the
Additional MIP Awards shall be treated as includible compensation for
purposes of such calculations and shall be deemed to have been paid
over the Continuation Period as opposed to in a lump sum.
2. AMENDMENT TO SECTION 3(B). Section 3(b) is hereby further amended by
adding the following subsection (iii) after subsection (ii) thereof:
(iii) The Executive shall be entitled to receive the amount set forth
beside the Executive's name on Exhibit A hereto (the "Retention Pool
Payment"). The Retention Pool Payment shall be paid to the Executive in
cash in a lump sum upon the earlier to occur of the thirtieth day
following the Closing Date and the date that the Executive is due to
receive his first payment under Section 3 of this Agreement; PROVIDED,
HOWEVER, that, notwithstanding anything contained herein to the
contrary, if the Executive's employment is not terminated under
circumstances entitling him to receive payments under this Section 3,
then the Executive shall receive the Retention Pool Payment at the time
the Retention Pool Payments are otherwise payable pursuant to Schedule
5.08(d) of the Merger Agreement. For purposes of Sections 2(j) and 3(h)
of this Agreement, and for purposes of all employee benefits provided
by the Company (hereunder or otherwise) that are affected by the
compensation or earnings of the Executive, the
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Retention Pool Payment shall not be treated as includible compensation
for purposes of such calculations.
3. AMENDMENT: The provisions amended, modified or added pursuant to this
Second Amendment may not be amended or modified without the express
written consent of the parties hereto and of Rexam.
4. COUNTERPARTS. This Amendment may be executed in several counterparts,
each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
this 31st day of March, 2000.
AMERICAN NATIONAL CAN COMPANY
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
Chairman and Chief Executive Officer
AMERICAN NATIONAL CAN GROUP, INC.
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
Chairman and Chief Executive Officer
EXECUTIVE
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Solely as guarantor of the Company's obligations and as beneficiary of the
amendment provisions in Section 3 hereof.
REXAM PLC
By: /s/ Xxxx Xxxxxxxxx
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